Feliciano-Rodriguez v. United States (115 F. Supp. 3d 206, 2015)

JUDGMENT

CARMEN CONSUELO CEREZO, District Judge.

Having considered the Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (D.E. 1) and the Amended Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C, § 2255 (D.E. 2) filed by petitioner Wilfredo Feliciano-Rod-riguez, the United States’ Response in Opposition (D.E. 6), petitioner’s Reply to the Response (D.E. 8), and the Report and Recommendation issued by U.S. Magistrate-Judge Justo Arenas (D.E. 39), to which no objections have been filed, said Report and Recommendation is APPROVED and ADOPTED and petitioner’s Motions Under 28 U.S.C. § 2255 are DENIED. Accordingly, it is ORDERED and ADJUDGED that judgment be and is hereby entered DISMISSING this action.

No certificate of appealability shall be issued, as petitioner has not made a substantial showing of the denial of a constitutional right within the meaning of .Title 28 U.S.C. § 2253(c)(2). Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

SO ORDERED AND ADJUDGED.

MAGISTRATE JUDGE’S REPORT ■ AND RECOMMENDATION

JUSTO ARENAS, United States Magistrate Judge.

I. PROCEDURAL BACKGROUND

■ Petitioner, a convicted drug trafficker, is seeking collateral review of his life sentences based upon ineffective assistance of his primary retained attorney Lorenzo Pa-lomares Starbuck. He also attacks the performance of his retained appellate attorney Linda Backiel and his court-appointed attorney Bruce McGiverin. An ev-identiary hearing was held on one of the many issues he has raised for collateral review. In this review he has sought the assistance of a jailhouse lawyer and has more recently- been ably assisted by court-appointed counsel Edgar L. Sanchez-Mercado. See Owens v. United States, 483 F.3d 48, 60-61 (1st Cir.2007). With this nutshell as preface, I discuss the background of the case before entering into the two dozen issues raised.

On March 11, 2004, a grand jury sitting in Puerto Rico returned a six-count su-perceding indictment charging petitioner Wilfredo Feliciano-Rodriguez and eleven other defendants, with narcotic drug and weapons violations. Petitioner was charged in the first count in that, from on about 1998 up to and including the date of the indictment, in the District of Puerto Rico and elsewhere, and within the jurisdiction of this court, petitioner and the co-defendants, together and with others, known and unknown to the Grand Jury, did knowingly, intentionally and unlawfully conspire, confederate, and agree together and with each other, and with diverse other persons, to commit an offense against the United States, that is, to possess with intent to distribute and distribute narcotic controlled substances, to wit: five kilograms or more of cocaine, and/or fifty grams or more of cocaine base (“crack”), both Schedule II Narcotic Controlled Substances, and/or in excess of one kilogram or more of a mixture or substance containing a detectable amount of heroin, and/or 1000 kilograms or more of marijuana, both Schedule I Narcotic • Controlled ■ Substances, inside or within 1,000 feet of real property' comprising a housing facility owned by a public housing authority, that is, the Nuestra Señora de Covadonga Public Housing Project, Trujillo Alto, Puerto Rico, in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(A), 846 and 860. All in violation of 21 U.S.C. § 846. (Criminal 04-052, Docket No. 60). Count Two charged petitioner and three other defendants with knowingly, intentionally and unlawfully conspiring, combining, confederating and agreeing together and with each other and with diverse other persons, to commit an offense against the United States, that is, to knowingly, willfully, intentionally and unlawfully possess, use, brandish, or carry firearms, as that term is defined in section 921(a)(3), of Title 18, United States Code, in furtherance of, or during and in relation to a drug trafficking crime as that term is defined in Section 924(c)(2), of Title 18, United States Code, to wit: conspiracy to possess with intent to distribute and distribute narcotic controlled substances, an offense for which they can be prosecuted in a court of the United States as a violation of Title 21, United States Code, Section 946 as charged in Count One, all in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(o). (Id. at 10). Counts Four and Six charge petitioner with knowingly, willfully, intentionally' and unlawfully possessing, using, brandishing, or carrying a firearm (on two different dates), as that term is defined in section 921(a)(3), of Title 18, United States Code, in furtherance of, or during and in relation to a drug trafficking crime as that term is defined in Section 924(c)(2), of Title 18, United States Code, to wit: conspiracy to possess with intent to distribute and distribute narcotic controlled substances, an offense for which he can be prosecuted in a court of the United States as a violation of Title 21, United States Code, Section 846. as charged in Count One, all in violation of 18 U.S.C. §§ 924(c)(l)(A)(ii). Petitioner is described as a leader and organizer who also supervised the drug points, in thé housing project, overseeing the managers, runners, enforcers and sellers. During the years the criminal enterprise existed, he played different roles until he reached the top position of owner of the drug point.

Petitioner was arrested on June 1, 2004 and arraigned on June 7, 2004. (Criminal No. 04-052, Docket No. 104). Court-appointed counsel Bruce McGiverin represented petitioner at the time. During the following months, several codefendants entered guilty pleas based upon agreements with the government and eventually all entered guilty pleas in this case except for one who died after indictment. In a companion case, petitioner is mentioned as an unindicted co-conspirator. Attorney McGiverin represented petitioner for seven months. On January 27, 2005, counsel McGiverin moved to withdraw representation and retained counsel Lorenzo J. Palomares-Starbuck entered a notice of appearance on behalf of petitioner. (Criminal No. 04-052, Docket Nos. 265, ’ 269). After a very active motion practice period, petitioner alone proceeded to trial a year later. United States v. Rodriguez, 525 F.3d at 93.

Trial began on January 17, 2006 and ended with a guilty verdict on February 15, 2006. (Criminal' No. 04-052, Docket No. 430). Petitioner was sentence on November 6, 2006 to life imprisonment' on Counts One and Two, to be served concurrently, followed by a term of seven years as to Count Four and twenty-five years as to. Count Six, to be served consecutively to each other and to the sentences for Counts One and Two. (Criminal No. 04-052, Docket No. 463). A notice of appeal was filed. On appeal, petitioner argued that the cumulative'effect of errors deprived him of a fair trial, and that the evidence varied impermissibly from the information in the indictment. The sentence was also challenged as unreasonable, and further stressed errors as to drug quantity calculations, and the brandishing of a firearm, that a sentence above the statutory maximum was imposed, and that erroneous consecutive sentence were imposed for the convictions under 18 U.S.C. § 924(c). Petitioner was then represented by retained counsel Linda Backiel.

In a lengthy discussion, petitioner’s convictions as to Counts One and Two were affirmed on May 13, 2008, but the sentence as to Count Two was vacated with instructions for the district court to sentence petitioner to a term of no more than twenty years. (Criminal No, 04-052, Docket No. 512) (Mandate). The conviction and sentence as to Count Four was vacated and the conviction as to Count Six was affirmed with instructions to sentence petitioner to the statutory minimum term of five years, to run consecutively to the sentences imposed on Counts One and Two. United States v. Rodriguez, 525 F.3d 85, 112 (1st Cir.2008).

On remand, and prior to re-sentencing, petitioner sought the appointment of counsel, specifically attorney Linda Backiel. (Criminal No. 04-052, Docket No. 527). Therefore counsel Palomares-Starbuck was relieved from legal representation and counsel Linda Backiel was appointed to represent petitioner on November 6, 2008. (Criminal No. 04-052, Docket No. 531).

Petitioner was re-sentenced on December 9, 2008. (Criminal 04-052, Docket No. 536). An appeal followed. On March 5, 2010, the court of appeals affirmed the sentences in a detailed judgment. United States v. Feliciano-Rodriguez, No. 09-1124 (1st Cir. March 5, 2010). (Criminal No. 04-052, Docket No. 567).

The court noted that it was not plain error for the district court not to group Counts One and Two pursuant to U.S.S.G. § 3D1.2(c). In any event, no substantive rights were affected since petitioner’s total sentence was not thus lengthened.

The argument that the 20-year sentence on Count Two was substantively unreasonable was also rejected since it was the only sentence possible under the guideline range, and the district court adequately explained the reasons for the same.

II. COLLATERAL REVIEW

This matter is before the court on timely 43-page motion with accompanying 21-page memorandum of law to vacate, set aside or remand sentence filed by petitioner Wilfredo Feliciano-Rodriguez on July 18, 2011, amending a motion filed a week previously. (Docket Nos. 1, 2). Also before the court is petitioner’s supplemental motion filed on December 18, 2012, and another supplemental motion filed on October 2,2013. (Docket Nos. 10,11).

An evidentiary hearing was held on February 13, 2015 in relation to the facts surrounding petitioner’s rejection of a plea, A final memorandum in support of the Section 2255 motion was filed on April 1, 2015. (Docket No. 38). All previous filings of substance were pro se, and very apparently with the aid of a jailhouse lawyer.

Petitioner presses before the court a comprehensive attack on the performance of his tidal attorney Lorenzo Palomares-Starbuck, complaining of the short notice petitioner received in order to accept a 15$ year plea offer, requiring him to make a split-second decision on a major life decision, and also complaining of the advice of counsel to go to trial based upon a weak case for the prosecution. (Docket No. 2 at 3). Petitioner also complains that counsel’s unavailability contributed to his poor performance in terms of advising him on whether to plea guilty or go to trial and that if he would have had a few more days to consider the government’s offer, he would have accepted it and the result would have been different. (Docket No. 2 at 4). The prejudice is obvious due to the difference between a life sentence and 15$ years. He notes that counsel McGiverin told him that he faced 40 to 47 years if found guilty by the jury, and that if he knew he faced a life sentence, he definitely would have accepted the fifteen and lk years. (Docket No. 2 at 4). Petitioner complains that before filing a motion for change of plea, counsel Palomares Star-buck did not confer with him, and that during the 55-day period between the filing of the motion for change of plea and the hearing date, counsel did not confer with him. (Docket No. 2 at 5). Petitioner also complains of an announced alibi defense that never appeared at trial, and also complains that an identification expert was not presented in relation to a video that was presented in evidence to show that he was not in the video.

Petitioner argues generally that counsel failed to diligently prepare a defense (quoting instructions by the trial judge to counsel), as reflected in his not translating documents- into the English language, in failing to object when the trial judge spoke to a juror in camera, in failing to argue at closing argument on the identification defense which he had noted in opening statement, in failing to review all discoverable evidence, in failing to “subject the prosecution to meaningful adversarial testing”, failing to object to the court’s instruction on controlled substances, failing to object to other jury instructions, failing to object to an aerial photograph, or to the testimony of a law enforcement agent as to the area of drug trafficking. (Docket No. 2 at 12). Petitioner also attacks counsel’s failure to object to overview testimony, and to attack a biased grand jury and prosecuto-rial misconduct. Other details are raised such as one related to a juror, to a jailhouse photo, to the court’s not allowing petitioner to bring a Bible into the courtroom, which arguably reflects the court’s bias toward him and lack of impartiality. Petitioner also states that he saw a prosecutor and witnesses talking with a female juror in the hallway of the courtroom, as well as during closing argument, and that his attorney did not bring this to the court’s attention. Petitioner charges that counsel failed to move for mistrial based upon improper conduct by the prosecution and goes through details of the testimony which was poorly handled by counsel.

Appellate counsel is charged with failing to raise numerous issues such as improper and prejudicial jury instructions, failing to raise the determination of the amount of drugs based on facts other than those determined by a jury, and failing to preserve prior objections.

Petitioner also asks for discovery regarding the plea issue, visits to MDC by counsel, and record of phone calls between client and counsel.

Petitioner’s primary memorandum of law contains the legal bases for his arguments, beginning with:the leading case of Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The United States filed a 25-page response in opposition to petitioner’s motion on October 26, 2011. (Docket No. 6). It argues that the evidentiary claims were raised on appeal, thát the court of appeals has considered each of the trial court’s evidentiary rulings, that some issues lack merit, and that others were not raised on appeal and therefore are foreclosed on collateral review. (Docket No. 6 at 5). The United States also stresses the lack of error in sentencing related to drug quantity determinations. (Docket No. 6 at 6). The government addresses the details of petitioner’s argument related to alibi, identification, aerial photograph, in camera communication with juror, jury instructions, irregular and false grand jury testimony, juror bias (based upon a juror who knew petitioner), and unfairly prejudicial evidence. The prosecution notes the lack of error in the court’s excluding the Bible from the courtroom under the circumstances.

The translation issue is also'addressed and‘rebutted as well as the plea offer matter, noting the contradictory information provided in supporting the lack of merit to the argument. The plea offer was made and was rejected. (Docket No. 6 at 22). Finally, the government demurs from the cumulative .error argument and also notes that the burden for showing entitlement to an evidentiary hearing has. not been met.

On December 5, 2011, petitioner filed a 17-page reply to the response. (Docket No. 8). Petitioner notes that if the court agrees with the plea offer issue, the rest of his argument is moot, and stresses that there is no counter-affidavit presented by the government in relation to the issue of the timely conveyance of the plea offer. He stresses that he should have had time to confer with his family on such a life-altering decision, but that he was rushed into the decision. He also complains that the counteroffer of 12 lk years was not conveyed to the government. Admitting that the plea offer was rejected, he stresses the lack of time to consider it, the blame for which is squarely placed on the shoulders of his attorney. The rest of the reply is mostly repetitious, at times expanding on previous argument.

On December 18, 2012, petitioner, moved to supplement his petition under Fed. R.Civ.P. 1.5(c), premised on supplementary authority in relation to the plea offer issue, based upon Lafler v. Cooper, 566 U.S. -, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012). The government did not respond to this motion.

Finally, on October 2, 2013, petitioner again moved to supplement his petition under Fed.R.Civ.P. 15(c), this time praying for relief under Alleyne v. United States, 570 U.S.-, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The government did not respond to this motion. This is simply an observation and not a criticism.

I will be addressing ad seriatim the issues raised by petitioner and hope to avoid any confusion that may result since his numerous grounds for relief are titled adequately but not numbered. Petitioner reminds the court in his first supplemental brief that it should review his pleading liberally under the pleading standard of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and also because petitioner is a non-English speaking pro se litigant. Of course, because petitioner originally appeared pro se, regardless. of whether he is being assisted by a jailhouse lawyer, his pro se pleadings are considered more liberally, however inart-fully pleaded, than those, penned and-filed by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Paez-Fontana v. U.S., 31 F.Supp.3d 328, 331 (D.P.R.2014); Campuzano v. United States, 976 F.Supp.2d 89, 97 (D.P.R.2013); Proverb v. O’Mara, 2009 WL 368617 (D.N.H. Feb. 13, 2009) at *1. Notwithstanding such license, petitioner’s previous pro se status does not excuse him from complying with both procedural and' substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.1997); Boudreau v. Englander, 2009 WL 2602361 at *1 (D.N.H. Aug. 24, 2009). An evidentiary hearing was scheduled and held. Counsel Edgar Sanchez-Mercado was previously appointed to represent petitioner at the hearing. The generous standard does not apply to counsel’s submission for obvious reasons.

Having considered the argument of petitioner and the United States, I find that the performance of defense counsel Lorenzo Palomares Starbuck fell below an objective standard of reasonableness in relation to the amount of time that passed between communications with petitioner but that petitioner was not prejudiced in his decision-making .process by that passage of time. In relation to the- other grounds for relief, I do not find that counsel Palomares Starbuck rendered inadequate performance in a Sixth Amendment sense, particularly given the nature of the remedy sought. I further find that appellate counsel Linda Backiel did not render ineffective assistance on appeal. I make a similar finding as to then defense counsel Bruce McGiverin. I explain.

The nature of federal habeas corpus cannot be overemphasized. It is, an extraordinary remedy in light of .society’s legitimate interest in the finality of judgments. United States v. Ashton, 961 F.Supp.2d 7,11 (D.D.C.2013). It is a rarely applied remedy in its extraordinary character. It is neither a second chance at appeal nor is it a substitute for direct appeal; “a defendant is therefore required to show ‘a good deal more than would be sufficient on a direct appeal’ to gain .collateral relief’. Id., citing United States v. Pollard, 959 F.2d 1011, 1020 (D.C.Cir.1992); United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see Fernandez-Malave v. United States, 502 F.Supp.2d 234, 238 (D.P.R.2007). Notwithstanding the number and depth of issues presented, and notwithstanding one of my conclusions in favor of petitioner’s position, petitioner has failed to show that he is entitled to extraordinary relief.

III. DISCUSSION

Under section 28 U.S.C. § 2255, a federal prisoner may move for post conviction relief if:

the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is, otherwise subject to collateral attack......

28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); David v. United States, 134 F.3d 470, 474 (1st Cir.1998). Petitioner’s claims fall under this last clause.

It is well settled that the Sixth Amendment right to counsel guarantees effective counsel. See Strickland v. Washington, 466 U.S., at 686-87, 104 S.Ct. 2052; United States v. Ortiz, 146 F.3d 25, 27. (1st Cir.1998). Nevertheless, petitioner bears a “very , heavy burden” in his attempt to have his sentence vacated premised on an ineffective assistance of counsel claim. See Turner v. United States, 699 F.3d 578, 584 (1st Cir.2012); Argencourt v. United States, 78 F.3d 14,16 (1st Cir.1996); Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993). This is, particularly true in this circuit where a lawyer’s performance is deficient -under Strickland “... only where,, given the facts 'known at the time, counsel’s choice was so patently unreasonable that no competent attorney would have made it.” United States v. Rodriguez, 675 F.3d 48, 56 (1st Cir.2012), quoting Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir.2010), which in turn quotes Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006).

The United States Supreme Court has developed a two-pronged test to determine whether a criminal defendant was denied his constitutionally guaranteed effective assistance of counsel. See Strickland v. Washington, 466 U.S. at 687-88, 104 S.Ct. 2052; also see Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 1107-08, 185 L.Ed.2d 149 (2013). Pursuant to the two-part test, petitioner must first establish that his counsel in the criminal proceedings was deficient in that the quality of legal representation fell below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. at 687-88, 104 S.Ct. 2052; Ortiz-Graulau v. United States, 756 F.3d 12, 17 (1st Cir.2014); Rosenthal v. O’Brien, 713 F.3d 676, 685 (1st Cir.2013). In order to satisfy the first-prong of the aforementioned test, petitioner “must show that ‘in light of all the circumstances, the identified acts or omissions [allegedly made by his trial attorneys and/or appellate counsel] were outside the wide range of professionally competent assistance.’ ” Tejeda v. Dubois, 142 F.3d 18, 22 (1st Cir.1998) (citing Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. 2052). Petitioner must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Smullen v. United States, 94 F.3d 20, 23 (1st Cir.1996) (citing Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052). Finally, a court must review counsel’s actions deferentially, and should make every effort “to eliminate the distorting effects of hindsight.” Argencourt v. United States, 78 F.3d at 16 (citing, Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052); see also Burger v. Kemp, 483 U.S. 776, 789, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); Ramirez-Burgos v. U.S., 990 F.Supp.2d 108, 122-23 (D.P.R.2013).

The second prong of the test, “[t]he ‘prejudice’ element of an ineffective assistance [of counsel] claim[,] also presents a high hurdle. ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.’” Argencourt v. United States, 78 F.3d at 16 (citing Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. 2052). Thus, petitioner must affirmatively “prove that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” Knight v. United States, 37 F.3d 769, 774 (1st Cir.1994) (citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052). That is, if petitioner succeeds in showing deficiencies in his legal representation, then he must conclusively establish that said deficiencies operated a real prejudice against him in the criminal proceedings. See id. at 694, 104 S.Ct. 2052.

“In all criminal prosecutions, the accused shall enjoy the right to ... the Assistance of Counsel for his defence.” U.S. Const, amend. 6. “[T]he ‘Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.’” Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir.2007) (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003)). As to the two part test for constitutionally ineffective assistance of counsel, petitioner bears the burden of proof for both elements of the test. See Cirilo-Muñoz v. United States, 404 F.3d 527, 530 (1st Cir.2005) (citing Scarpa v. Dubois, 38 F.3d 1, 8-9 (1st Cir.1994)). There is no doubt that Strickland v. Washington, supra, also applies to representation outside of the trial setting, which would include sentence and appeal. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Bonneau v. United States, 961 F.2d 17, 20-22 (1st Cir.1992); United States v. Tajeddini, 945 F.2d 458, 468-69 (1st Cir.1991), abrogated on other grounds by Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). A fortiori, the right to effective assistance of counsel applies to the plea bargaining process. See Missouri v. Frye, 566 U.S.-, 132 S.Ct. 1399, 1406-1407, 182 L.Ed.2d 379 (2012). Indeed, the “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.” Id. at 1405, quoting Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), which in turn quotes United States v. Wade, 388 U.S. 218, 227-228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

Assuming that counsels’ representation fell below an objective standard of reasonableness, petitioner would still have to prove that the representation resulted in prejudice to his case. See Owens v. United States, 483 F.3d at 63 (quoting Strickland v. Washington, 466 U.S. at 687-88, 104 S.Ct. 2052). For our purposes, it makes no difference in which order the test of Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052 is applied. See Turner v. United States, 699 F.3d at 584.

Within a habeas corpus case the decision to order an evidentiary hearing is left up to the discretion of the court. A court may deny an evidentiary hearing when “(1) the motion is inadequate on its face, or (2) the movant’s allegations, even if true, do not entitle him to relief, or (3) the movant’s allegations ‘need not be accepted as true because they state conclusions instead of facts, contradict the record, or are ‘inherently incredible.’ ’ ” David v. United States, 134 F.3d at 477 (quoting United States v. McGill, 11 F.3d 223, 225-26 (1st Cir.1993)); Shraiar v. United States, 736 F.2d 817, 818 (1st Cir.1984). The United States originally opposed the holding of an evidentiary hearing but has not pressed the matter.

Finally, collateral attack on non-constitutional and nonjurisdictional “claims are properly brought under section 2255 only if the claimed error is ‘a fundamental defect which inherently results in a complete miscarriage of justice’ or ‘an omission inconsistent with the rudimentary demands of fair procedure.’” Knight v. United States, 37 F.3d at 772, quoting Hill v. United States, 368 U.S. at 428, 82 S.Ct. 468.

IV. ISSUES

With bedrock principles as background, I consider the issues raised by petitioner.

FIRST GROUND:

PLEA REJECTION

Petition complains that counsel’s failure to timely consult with him regarding an offered plea, and the prediction of acquittal due to a weak case led petitioner to reject the offer and proceed to trial. Petitioner stresses that he would have taken the offer if he would have had time to study it, but because of counsel’s failure to timely communicate with him, in part due to counsel’s traveling, he rendered ineffective assistance. He also stresses that if he had known he was exposed to a life sentence if convicted after trial, he would have taken the offer.

The matter of the plea offer and its rejection were set for evidentiary hearing which was held on February 13, 2015. Petitioner was represented by attorney Edgar L. Sanchez-Mercado, the United States by Assistant United States Attorney Desiree Laborde-Sanfiorenzo. Eight members of petitioner’s family were also present at the hearing.

A. EVIDENTIARY HEARING

Petitioner testified that he is 33 years old and has been residing at the Metropolitan Detention Facility in Guaynabo for the last two months. Previously he lived at Coleman Federal Penitentiary for 8 years. Before that period, he had been at MDC for 2 1/2 years. After he was sentenced, he went to Coleman where he has been serving two life sentences, and additional sen-fences of 7 and 25 years. The charges were both for drugs and weapons.

Petitioner’s attorney was Lorenzo Palo-mares Starbuck during the trial period up until the date of sentence, and also before that period while they were looking into how to prepare for.trial. The last day he saw him was on the date of the sentence, November 6, 2006. Before that, petitioner had met with him five or six times. The first visit was about getting started on the payment. Two or three other times that he visited with petitioner in prison was to look at videos and other evidence and get ready for trial. And that was it from the .lawyer he had contracted to represent him.

Petitioner noted that he had received help in preparing his pleadings from a fellow inmate, Jimmy, a Mexican inmate at Coleman. Petitioner explained his participation in preparing the motions, including the direct appeal to Boston. He also explained that he received help for the 2255 from the Mexican and he would translate since petitioner does not know English. He also knew about law and was given the information he needed from petitioner to put in the appeal. Jimmy asked petitioner about the errors petitioner saw since the 2255 motion involved those failures or errors that petitioner had seen.

The appeal in Boston was prepared by attorney Linda Backiel, court appointed counsel. The result was that Count One of the indictment was taken away, and reduced to 20 years. In Count 3, which resulted in 25 years, he was found not guilty, and the seven years for the weapons charge were reduced to 5 years. The rest of the conviction was affirmed.

Referring to the 2255 motion, Docket No. 1, petitioner noted that it was prepared by Jimmy and him. Referring to page 3 of the plea agreement, petitioner testified that Jimmy asked him what he saw as a deficiency of the attorney’s representation.- • Petitioner explained that in the early morning hours of the day he was to enter a guilty plea (unknown to him), he was awakened because he had court that day. The guard said that he was on a list and had to go to court. He did not know he had court that day since his lawyer did not- tell him there was court. It was a surprise.

At the court, the process at the eellblock was normal but suddenly the lawyer comes and wants to talk to him. Petitioner asked him what was happening. The attorney said that he had a plea agreement, for him to sign. Petitioner’s reaction was “Wait a second. We haven’t talked about a plea”. He was surprised. - The lawyer never told him about a plea and ..they were getting ready for trial, but now the lawyer surprised him with this agreement. He said this is routine. The lawyer told him that if he did not want to sign the plea, not to worry because he would be going before a female United States . Magistrate Judge and he could tell her he did not want to sign. That is what he said and that is what petitioner did once in court. (Criminal No. 04-052, Docket No. 376, dated November 29, 2005). The lawyer explained to him that the content of the plea agreement was for 15 1/2 years. Petitioner was told this through a window. Petitioner explained to the lawyer that he had no time to analyze it, and that the lawyer hadn’t come to see him. He wanted time to talk to his family to see what decision to make. He says there was no time, and that either sign then and there or they would go to court, meaning to trial. Petitioner did not read that plea agreement. He saw the paper (plea agreement) in' court and it was in English. Mr. Palo-mares Starbuck just told him of the government’s offer of 15 years. He would be pleading guilty to conspiracy and weapons charges. They did not talk about the sentencing guidelines nor about the minimum and maximum sentences. Mr. Palomares Starbuck said that one of sentences could be more that 10 years (the drug charge) and the other one, the weapons charge, upward of 25 years. There was also another weapons charge. So there was a total of 40-45 years for the other weapon included that he would be facing. He never mentioned a life sentence. Petitioner had also discussed a plea agreement at MDC with attorney Bruce McGiverin before attorney Palomares Starbuck came into the case.

Once in court before the U.S. Magistrate Judge with attorney Palomares Starbuck, they did not spend any time talking about the plea agreement on the table. It was all fast. They hardly spoke. The United States Magistrate Judge asked him and petitioner said to her that he was rejecting the plea. He did not have enough time to do anything else. So the lawyer said to him to be ready, that the trial would start soon.

Based on what he had discussed with the attorney through the glass (partition at the U.S. Marshal’s holding area), and later, the attorney said that it was routine “and that kind of thing”. It was (take the plea offer), sign right then and there, now, or go to trial. Petitioner said that they were getting ready for trial. “Then it’s trial.” “Let’s go over there and get this done and over with”.

Petitioner later talked to the attorney about what had happened at that hearing. He was not specific about what was being offered. Petitioner asked why he hadn’t talked to him, and why he wasn’t specific about the offer before, and why he was not getting the same offer as a co-defendant who had the same charges petitioner was facing. They never discussed filing any motion. He never discussed with the attorney to file a motion for change of plea. Petitioner did not authorize him to file a motion for change of plea at that time. The lawyer said that the prosecutor had given him the plea agreement at that time. The whole .time the attorney was telling petitioner that they had a good case. Petitioner had never told the attorney what his previous attorney, Bruce McGiverin, had told him. But he explained that attorney McGivérin once told petitioner that if found guilty, he could receive a sentence of 40 to 45 years. Petitioner told attorney McGiverin about the 12 1/2 year offer to a codefendant. Attorney McGiverin did not know of any negotiations or of 12 1/2 years that were offered to another defendant.

After the hearing, they just got ready to go to trial. It was maybe three weeks or a month before trial started. They never again talked about what had happened in the change of plea hearing. Petitioner asked him why the prosecutor’s office was not bringing the same offer of 12 1/2 for the co-defendant. This was asked before and after the change of plea hearing. They talked about this three or four time. Petitioner never got a reply in relation to any plea negotiations.

The day of the trial, there were no offers on the table. The lawyer said no. Petitioner repeated the 12 1/2 years. The attorney told him he had to cooperate, or stick with the 15 1/2 years, or go to trial. On the day of trial they did not discuss the possibility of pleading out. The lawyer never said anything to petitioner. Petitioner testified that he always wanted to plead guilty. But the lawyer at the change of plea hearing said it was now or trial. Attorney Palomares Starbuck had said they had a good case, but gave petitioner no hope to have time to discuss the offer with his family. So petitioner decided, OK, let’s go to trial.

The two only argued on the date of the change of plea hearing because he caught petitioner by surprise. Petitioner never received any plea related correspondence in the mail.

Expressing his opinion about attorney Palomares Starbuck, petitioner noted that he never told petitioner about any plea negotiation, and always prepared to go to-trial, always talking about going to trial, because they had a good case based on the evidence. Both of them looked at the videos to be used in evidence by the . government. Petitioner testified that he only comes out in one part of the video receiving a weapon. However, on the video, attorney Palomares Starbuck said that it was not petitioner, that it does not look like petitioner. Petitioner looked at the video and said that it did not look like him at all but the truth is that the person in the video was petitioner. Based on that they went to trial.

When asked how he felt about the plea agreement at the evidentiary hearing, petitioner cried on the witness stand. When asked about the plea agreement, if he would have done something different, petitioner said that he would have, with the knowledge that if he went to trial he was exposed to a whole life in jail. He did not have the knowledge.

Attorney Palomares Starbuck said it was a good case, a wonderful case. Petitioner would tell that to his family. During trial, things were going well. Suddenly, after a week into trial, halfway through, things started to change.

In relation to the plea agreement that was rejected, petitioner stated that attorney Palomares Starbuck never advised him, never gave him good advice so that he would have a good sentence, and never sat down to discuss it with him.

On cross-examination, petitioner was shown a copy of the visitor’s log which reflects twelve visits to petitioner from Mr. Palomares Starbuck in 2005 and one visit in early 2006. Exhibit A.

Petitioner admitted that a plea offer was made and was discussed with court-appointed attorney Bruce McGiverin with whom he had met at the prison at the beginning of his time at MDC after he was arrested on June 1, 2004. See Criminal No. 04-052, Docket No. 120. Attorney McGiverin represented him two or three months. That could have been all of 2004 and part of 2005. Petitioner testified that he could not understand him every time he would come to see petitioner in 2005 so the money was put together by petitioner’s family to hire an attorney. A fellow inmate at the same ward told petitioner about attorney Palomares Starbuck. The inmate told petitioner that the attorney was good and that he had helped the inmate a lot.

Attorney Palomares Starbuck came to visit. Petitioner did not hire him because of his experience, but because he went through everything and saw something good in the case. Otherwise he would not have hired him. The attorney checked everything, the evidence in the case, before petitioner hired him. So petitioner got rid of attorney McGiverin because of the Spanish he spoke, and because petitioner was not sure the attorney understood him. But petitioner did understand the charges and the maximum penalties which attorney McGiverin explained to petitioner although petitioner explained about the co-defendant who had received a 12 1/2 year offer. At that point attorney McGiverin said to go ahead and sign the plea agreement for fifteen years since he faced 7 years and 25 years and conspiracy for 10 years on the charges. Attorney McGiverin explained the offer and the maximum penalty but said he would see if he could get something better. So the 15 year offer was explained to petitioner by attorney McGiverin, and petitioner decided that he was not going to take that plea agreement of 15$ years. Petitioner asked' attorney McGiverin why he was not getting the same offer of 12$ years as a co-defendant. Attorney McGiverin’s focus was to get a better offer and for petitioner to cooperate with the United States Attorney’s Office. Petitioner rejected cooperation.

Petitioner discussed the fifteen year offer which was explained by attorney Me-Giverin, and declined it. He asked attorney McGiverin to get him 12 years, that fifteen years was too much. As a kid, he felt at that time that it was too much. The exposure should not have been the result. Petitioner knew the sentence exposure before going to trial because attorney McGiv-erin explained it to him, based on how he was charged. Now with the knowledge that petitioner has, that should have been the result. Petitioner was aware of the evidence of the drugs and the weapon and that was discussed with him by attorney McGiverin. Attorney Palomares Starbuck discussed the video and the video shows petitioner with a weapon. Attorney Palo-mares Starbuck was hoping that the jurors would not recognize him, although the lawyer knew that it was petitioner. Petitioner told him it was the wrong thing to do and that he knew that he was guilty. Both attorneys advised him to accept 15 years or he would be exposing himself to many more years if he went to trial.

Petitioner rejected the 15 years discussed with attorney McGiverin and rejected the renewed offer of 15 years presented by attorney Palomares Starbuck. He wanted 12 1/2 years that was offered to a co-defendant. He knew he was facing trial by rejecting the 15 year offer.

Petitioner insisted that attorney Lorenzo Palomares visited him three or four times. When confronted with the visitor log, petitioner stated that it was possible that he visited with petitioner twelve times and also three days before the trial.

Petitioner repeated that he was not well informed of the charges, and did not know his exposure. He did not remember ever being told the maximum exposure. Attorney McGiverin said the exposure was 40 to 45 years on the plea and exposure was not explained by attorney Palomares Star-buck. In the dozen visits, the first 6 or 7 visits were about the money, the other visits were about preparing for trial. The evidence was discussed but the defense was based on the lie that the attorney told him that he had a good case.

Petitioner never told either of the defense attorneys to stop negotiating. He did not tell attorney McGiverin to reject the plea offer but told him to keep negotiating to get something better. He told attorney Palomares Starbuck to get him Something better. Referring to the visitor’s log, Exhibit A, he noted a visit at MDC on July 20, 2005, and the next visit on October 6, 2005. The change of plea motion was filed on. October 4, 2005. (Criminal No. 04-052, Docket No. 370). The motion was not authorized by petitioner. Between October 6 and November 29 2005, there was no conversation with attorney Palomares Starbuck regarding a change of plea hearing. Petitioner never had notice from either attorney that the 15 years was the last offer. Attorney Palo-mares Starbuck said to take the offer or go to trial. This was the only time he made an offer'.

B. PLEA REJECTION ANALYSIS

“[T]he decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in a criminal case....” United States, v. Gordon, 156 F.3d 376, 380 (2d Cir.1998) (quoting Boria v. Keane, 99 F.3d at 496-97), cited in Malpica-Gareia v. United States, 2009 WL 2512425 at *3 (D.P.R.2009). Knowledge of sentencing exposures is crucial to the décision of whether to plead guilty. See United States v. Day, 969 F.2d 39, 43 (3rd Cir.1992), cited in Malpica-Garcia v. United States, supra; Malpico-Garcia v. United States, 2009 WL 1473906 at *3 (D.P.R.2009).

The government notes that on November 29, 2005, the case-, was called for change of plea. At that time, counsel Pa-lomares-Starbuck- informed that his client had decided to proceed to trial, against counsel’s advice (Crim. No. 04052, Docket' No. 376). Petitioner wanted to negotiate a lower sentence, talk with his family, pray to God for guidance, and think it over. However, contrary to his protestations, counsel informed petitioner to accept the plea. The plea offer was rejected, notwithstanding counsel’s advice to the contrary.

The docket of the. case paints a broader picture than the short canvas presénted by petitioner for the court’s consideration. Defense counsel had been preparing for trial as is apparent in the docket. (Criminal No. 04-0052, Docket Nos. 284, 289, 327, 334, 338, 378 (designating firearms expert), 382 (announcing alibi defense), 383 (notice of reciprocal discovery)). Aside from his traveling, and thus being unavailable to petitioner, the isolation in petitioner’s confinement proved to be a recurring theme before the court, particularly with the difficulty it presented in his preparing for trial and having access to family members who apparently would be witnesses. (Crim. No. 04052, Docket Nos. 284, 289, 300, 305, 357). This became a tangential theme of motion practice due to the infractions (for example having possession of a cellular telephone at MD) committed by petitioner at MDC and the loss of privileges, such as social visits from his'mother and fiancee.

A jury selection was set for August 9, 2005, but the jury was excused because of another defendant’s failure to be ready. (Crim. No. 04-052, Docket No. 338). • On September 30, 2005, the court reset the trial for October 5, 2005. Petitioner (through his attorney) moved for change of plea on October 4, 2005. (Crim'. No. 04-052, Docket No. 370). It is hardly credible that defense counsel would file a'motion for change of plea without first having spoken to petitioner as to whether he was ready to then enter a guilty plea with or without agreement, and without knowing the exposure, at least in relation to the guilty plea.' However, given the nature of the evidence related to attorney Palomares Starbuck’s absence from the jurisdiction, and the nature of conversations between them, it is clear that the filing of the motion was not preceded by án authorization to file such a motion. A‘ reading of the bare bones motion confirms that. Petitioner’s testimony in terms of counsel’s abrupt approach prior to entering the courtroom is credible particularly since other information in the docket confirms the absence of counsel and lack of communication.

The October trial setting was .vacated and the plea hearing was reset-for November 29, 2005. When the case.was called for change of plea, defense counsel addressed the court in the presence of petitioner and informed that, contrary to counsel’s advice, petitioner had decided to proceed to trial. (Criminal No. 04-052, Docket No. 376).

As to sentencing exposure, it strains credulity that petitioner was not aware of sentence exposure since the magistrate judges of this district routinely inform defendants at initial appearances of their imprisonment exposure per count and petitioner apparently kept himself informed about the progress of the other co-defendants’ cases. See Aguasvivas-Castillo v. Ü.S., 49 F.Supp.3d 167 (D.P.R.2014), citing Catalan-Roman v. United States, 2013 WL 6229385 at *7 (D.P.R. December 2, 2013), Even assuming, an inaccurate prediction, such a-prediction of a client’s probable sentence by itself does not satisfy the prejudice prong of the ineffective assistance test. Moreno-Espada v. U.S., 666 F.3d 60, 65 (1st Cir.2012); See United States v. LaBonte, 70 F,3d 1396, 1413 (1st Cir.1995), rev. on other grounds* 520 U.S. 751, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997), citing- Knight v. United States, 37 F.3d at 774. Petitioner wanted twelve years plus, the same agreement arguably given to a codefendant who was also described as a leader in the drug enterprise, as against fifteen plus. He was aware of that offer when he first received the government’s offer. 'He wanted to talk the plea offer with his family. This might have been' difficult in any event since his visitor privileges had been curtailed due to his own -infractions. He wanted more time to think things over. And he wanted more time to pray to God. And as the prosecution notes, he wanted time to pray for guidance. (Docket No. 2-2 at 6). He notes that his first attorney told him he would get 40-47 years if found guilty after trial, but that he would have accepted the fifteen years if he knew the exposure was life imprisonment. That is, he would have taken “an unjust plea, but one that is logical rather than receive a life sentence.” (Docket No. 2-2 at 5). This is not a case where the exposure is increased beyond the statutory maximum due to enhancing sentencing factors. As the charged conspirators go, petitioner was THE leader of the criminal enterprise. (Criminal No. 04-0052, Docket No. 60 at 5). It was natural that the government would seek the highest sentence for him, as indeed it did. The argument sounds more of convenience than of substance and a carefully tailored focus on a sudden offer which had been on the table with sufficient time to meditate and to discuss with the family. In short, the argument lacks merit due to the conclusive nature of being contradicted by the record, but also because the pax-amount question in any detainee’s mind is his exposure, since the conviction rate in this eoux-t is vox populi and 97% of federal cases nationwide are disposed of by guilty plea. Attorney McGiverin was appointed to represent petitioner on June 7,2004 and stopped representing petitioner by January, 2005. At least by September 3, 2004, petitioner had already received a plea offer from the government. The uncontrovert-ed evidence of government offers is that the offers remained the same from beginning to end and continued from one attorney to the other. And both attorneys had transmitted those offers to petitioner. See United States v. Rodriguez Rodriguez, 929 F.2d 747, 752 (1st Cir.1991); cf. Aguasvivas-Castillo v. U.S., supra.

Notwithstanding petitioner’s registered shock in October, 2005, he had had months to consult his family (mother and fiancee) about the original plea offer which had not changed. Perhaps being placed in isolation at MDC for extended periods had an effect on family visits. Nevertheless, that he was rushed into making a decision in the plea matter he raised so strongly in his original pleading and at the hearing is not credible. He simply wanted less and felt he had a chance at acquittal after reviewing the evidence with his last attorney, and based in part on lack of identification. Indeed in the preparation of the Presentence Investigation Report, after conviction, petitioner informed the United States Probation Officer that he was innocent, which is a position consistent with px-oceeding to trial.

Petitioner filed a supplemental memorandum after the hearing. Docket No. 38. He focuses on the second prong of the cause-prejudice test. I agree with the argument that petitioner received ineffective assistance of counsel from attorney Palo-mares-Starbuck. Petitioner points out that there was never any meaningful discussion in x-elation to a plea agreement between attorney Palomares-Starbuck and himself and the record plainly reflects that the focus of counsel was preparation for trial with an episode of presenting to petitioner the same plea agreement presented and obviously discussed with attorney Mc-Giverin. Petitioner notes that instead of a twelve year sentence he received a life sentence. But the constant offer of the government was always fifteen years and petitioner chose to go to trial and attempt an acquittal, based in part on a misidentifi-cation in a video, after numerous video recordings were subject of a mostly successful motion in limine by counsel McGiv-erin. (Criminal No. 04-052, Docket Nos. 160, 205). Even with the prediction of a possible 45 to 47 years if convicted on multiple counts, petitioner chose to proceed to trial based in part on attorney Palomares Starbuck’s advice, although the lawyer also advised him that he should not go to trial. That he had time for spiritual reflection and to consult with his family is clear from the months involved before the first plea offer and the last offer, and the number and quality of pro se motions filed by petitioner in the criminal case and in this case contradicts the argument presented in his pleadings prior to the April 1, 2015 filing.

I emphasize that my finding is that his second attorney, Palomares Starbuck, provided ineffective assistance to petitioner but that, notwithstanding an arguable language barrier with his first attorney, he was clearly provided adequate assistance during that representation sufficient to make intelligent choices.

Notably, petitioner argues that he registered shock at suddenly receiving a plea offer of 15/é year in federal prison when he was preparing for trial. He stresses that he was to make a decision in a matter of minutes but the truth is the decision had been being made over a number of months, and that decision was to get a better deal or go to trial because' of a possible misidentification which was discussed with attorney Palomares Starbuck. Indeed, the questioning of the identification was clearly a strategy of both petitioner and his attorney(s), starting from denying that he appeared in four photos presented by the prosecution at the detention hearing held on June 7, 2004. (Criminal No. 04-052, Docket No. 104). But ultimately, petitioner wanted more than he could have. He was candid in his original pleading, that is, that if he would have had a few more days to consider the government’s offer, he would have accepted it and the result would have been different. (Docket No. 2 at 4). He had had that offer not for moments, hours or days but for at least three months into the representation by attorney McGiverin, and four months before he was represented by attorney Palomares Starbuck. The argument that petitioner had no time to consider the plea offer is illusory and convenient and does not invite extraordinary relief on the issue.

Petitioner makes excessive mention of figures of the Holy Trinity in his various pleadings. The evidence at trial showed that during the six years of the criminal enterprise located at Nuestra Señora de Covadonga public housing project in Trujillo Alto, petitioner held different positions but that between April 2003 and the end of May 2004, he and Alex Trujillo were the leaders of the Covadonga cocaine and heroin drug point (becoming leaders after the previous leaders had been murdered) and that they also used weapons to carry out the purpose of the criminal enterprise. United States v. Rodriguez, 525 F.3d at 93, 102. Notwithstanding the urging of petitioner, the reliance on the Trinity must simply be ignored in this rendition to Caesar.

SECOND GROUND:

ALIBI DEFENSE

Petitioner argues that an alibi defense was announced but was not produced at trial and that he was thus prejudiced. (Docket No. 2 at 6). This argument is totally undeveloped and leaves the reader speculating as to where lies the prejudice. That counsel would announce the alibi defense on opening statement and abandon it at trial does not make him ineffective. See Encarnacion-Montero v. United States, 34 F.Supp.3d 202, 205-06 (D.P.R.2014); cf. Ramirez-Burgos v. United States, 990 F.Supp.2d at 126. As evidence develops, so does trial strategy.. See e.g. Hammonds v. Allen, 849 F.Supp.2d 1262, 1308-09 (M.D.Ala.2012); cf. DiMattina v. United States, 949 F.Supp.2d 387, 395-98 (E.D.N.Y.2013). A lawyer’s decision to make changes in such strategy does not result in a Sixth Amendment violation. See e.g. Garcia-Alvarez v. United States, 2010 WL 5185468 at *4-*5 (D.P.R. December 13, 2010). In any event, it is a settled rule that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 n. 3 (1st Cir.2005); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). So it goes with this argument. Considering the nature of the evidence which developed during the trial, the decision to abandon the alibi defense was not unwise, particular since jurors are not expected to believe what nobody else would.

THIRD GROUND:

IDENTIFICATION DEFENSE

Petitioner complains of defense counsel’s performance on closing argument in not reinforcing his opening statement regarding petitioner’s identification. And he complains that defense counsel focused the defense on the issue of the videos and his identification. (Docket No. 2 at 7). It is difficult to attribute error on the part of defense counsel to what may be considered garden-variety gear-shifting during the normal trial process. What may have seems, a good idea before trial and at the beginning of trial may have changed during trial. See Schlesinger v. U.S., 898 F.Supp.2d 489, 507-08 (E.D.N.Y.2012); cf. Brown v. U.S., 583 F.Supp.2d 1330, 1350 (S.D.Ga.2008). There were two key witnesses against petitioner at trial, one a cooperating coconspirator and the other a government informant who was installed in an apartment with a preferential view of drug deals in Covadonga. United States v. Rodriguez, 525 F.3d at 93. Credibility was a factor for the jury to determine. So was identification in the video recording that were not eliminated prior to trial by the court. Petitioner argues that an expert should have been employed to testify that he is not the person in the video. Arid he also notes that family members were ready to testify that he is not in the video. The result of such testimony is clearly speculative and no mention of what the result of the testimony would be after cross-examination. That the defense was not successful does not mean that it was not viable. In any event, as in the immediately previous argument, this argument is undeveloped. Nikijuluw v. Gonzales, 427 F.3d at 120 n. 3; United States v. Zannino, 895 F.2d at 17.

FOURTH GROUND:

FAILURE TO DILIGENTLY PREPARE

This argument is fairly conclusory and vague and is contradicted by the activity in the docket as well'as the.dynamics of the trial itself. See e.g. Criminal No. 04-052, Docket Nos. 284, 289, 310, 327, 335, 378, 383. Petitioner appears to have been well informed of the details of the accusation while he was awaiting trial. Sée Criminal No. 04-052, Docket Nos. 223, 235, 305. Petitioner picks out episodes that simply do not present an adequate picture of counsel’s performance save for the lengthy period prior to trial when counsel was out of Puerto Rico and failed to contact petitioner because he had too many fish to fry. That translations may or may not have been ready is not a reflection of diligence. (Docket No. 2-1 at 7). It is not at all clear if .that is the case here. Last minute translations may not be the rule of the court but is not uncommon considering the expense and the few cases that actually proceed to trial. This was not defense counsel’s first trial. He had considerable trial experience as a defense attorney in this court, having appeared in over 200 cases, civil and criminal, until he voluntarily resigned his membership in the bar on July 7, 2014, giving as reason his moving to the continental United States. Even assuming a translation may not have been ready at a certain time, no prejudice resulted.

FIFTH GROUND:

FAILURE TO OBJECT TO COURT COMMUNICATION TO A JUROR ■ IN A CRUCIAL SITUATION

Judges routinely have issues with jurors that have nothing to do with the issues of the case but rather with personal .problems, related to their ability to serve. Nevertheless, ex parte communications between judge, and jury may raise concerns under Federal Rule of Criminal Procedure 43(a) and the Fifth and Sixth Amendments. United States v. Rivera-Rodriguez, 617 F.3d 581, 603 (1st Cir.2010), citing Presley v. Georgia, 558 U.S. 209, 213-14, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010); United States v. Gagnon, 470 U.S. 522, 528, 105 S.Ct. 1482, 84 L.E.2d 486 (1985). The mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any cons